Thornhill Ltd v Sita Metal Recycling Ltd
| Jurisdiction | England & Wales |
| Judgment Date | 23 April 2009 |
| Neutral Citation | [2009] EWHC 2037 (QB) |
| Court | Queen's Bench Division |
| Date | 23 April 2009 |
| Docket Number | TLQ/08/1013 |
[2009] EWHC 2037 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
His Honour Judge Seymour
(Sitting as a Judge of the High Court)
TLQ/08/1013
MR HUTCHINGS and MR HYAM (instructed by Richard Buxton) appeared on behalf of the Claimants.
MR PHILLIPS QC and MISS T SCOTT (instructed by Andrew Bryce & Co) appeared on behalf of the Defendants.
No of Folios—74
No of words – 5289
JUDGE SEYMOUR QC:
The first claimant, Mrs Pamela Thornhill, is the freehold owner of the premises known as and situate at Station House, Barnwell Junction, Newmarket Road, Cambridge (“Station House”). Mrs Thornhill lives at Station House and has done for many years; in fact it seems since 1959. Station House and other land (“Station Lodge”) was conveyed to Mrs Thornhill's deceased husband, Mr Derek Thornhill, by the previous freehold owners of Station House and Station Lodge, the British Railways Board (“BRB”) by a conveyance (“the Conveyance”) dated 24 th January 1969. The land the subject of the Conveyance had previously been used by BRB as part of a railways goods yard and, in particular, as a coal yard.
By clause 2(A) of the Conveyance it was provided, so far as is presently material:
“2. (A) THERE are not included in the Conveyance…
(ii) any easement or right of light air or support or other easement or right which would restrict or interfere with the free use by the Board or any person deriving title under them for building or any other purpose of any adjoining or neighbouring land of the Board (whether intended to be retained or to be sold by them)”.
It is convenient to refer to that provision in this judgment as “the Clause”.
Mr Thornhill died intestate on 2 nd July 1975. His widow and Sarah Louise Thornhill (together “the Administrators”) were granted letters of administration of Mr Thornhill's estate out of the Ipswich District Probate Registry on 27 th April 1976. By an assent dated 1 st May 1981 the Administrators assented to the vesting of Station House and Station Lodge in Mrs Thornhill. In about 1990 a house was built on Station Lodge for the occupation of the second and third claimants, Mr and Mrs Trevor Foulkes. Mrs Foulkes is a daughter of Mrs Thornhill. By a deed of gift dated 5 th September 1990 Mrs Thornhill gave Station Lodge to Mr and Mrs Foulkes. Their title to Station Lodge seems to have been registered at HM Land Registry under title number CB260857 on 7 th June 2002.
Station House and Station Lodge are on the eastern side of the railway running from Cambridge to Ely. On the western side, as it were opposite Station House and Station Lodge, is land to which it is convenient to refer as “the Scrap Yard”. It is common ground that the Scrap Yard was, at the date of the Conveyance, in the freehold ownership of BRB. Following the dissolution of BRB on the privatisation of the railways in the United Kingdom, the freehold ownership of the Scrap Yard became vested in a company called BRB Residuary Limited (“Residuary”). By a lease (“the Lease”) dated 2 nd December 2002 made between (1) Residuary and (2) Anthony Ernest Edwards and Jeremy Peter Temple Hoggett, Residuary demised the Scrap Yard to Mr Edwards and Mr Hoggett for a term of three years from 16 th May 2002. It appears that in about June 2004 the residue of the term created by the Lease was assigned with the consent of Residuary to a company called SB Wheeler & Sons Limited (“Wheeler”). By a transfer dated 24 th June 2005, Residuary transferred to Wheeler the freehold title to the Scrap Yard. That transfer was registered at HM Land Registry on 5 th August 2005. By a certificate of incorporation on change of name dated 4 th August 2006 the name of Wheeler was changed to Easco (Wheelers) Limited. By a certificate of incorporation on change of name dated 5 th September 2007 the name of the company was changed again, this time to Sita MR Limited, which is the second defendant in this action. The first defendant in this action is Sita MR Cambridge Limited, a sister company of the second defendant.
As I understand it, it is common ground that the first defendant, as agent of the second defendant, operated the Scrap Yard as a scrap metal works between 27 th January 2004 and about 14 th April 2009. In this action the claimants allege that the operations of the defendants at the Scrap Yard amounted to a nuisance by reason of the noise and vibrations produced, and sought an injunction to restrain the defendants from continuing to cause nuisance, as well as damages. It was accepted on behalf of the defendants that their operations at the Scrap Yard since 27 th January 2004 had amounted to a nuisance. However, their case was that the claimants were prevented from complaining about that nuisance by reason of the terms of the Clause. They accepted that, if they were wrong about that, they would not undertake any further works at the Scrap Yard and would pay damages in an agreed sum of £25,000. The sole live issue in this action was, thus, whether by the terms of the Clause it was open to the claimants, or any of them, to complain about the activities of the defendants at the Scrap Yard.
While I think it was accepted on both sides that it was not material to the issue which I have to decide, my attention was drawn at the start of the trial to the fact that a new proprietor of the Scrap Yard had been registered at HM Land Registry on 11 th March 2009, a company called Roundwood Restorations Limited. It appears that at the time the issued shares in Easco (Wheelers) Limited were acquired by the parent company of the defendants, there was outstanding a contract between Easco (Wheelers) Limited and Roundwood Restorations Limited which provided for the sale of the freehold interest in the Scrap Yard by Easco (Wheelers) Limited to Roundwood Restorations Limited and the grant of a lease of the Scrap Yard by Roundwood Restorations Limited to Easco (Wheelers) Limited. Apparently without the knowledge of the defendants, the sale part of that transaction was completed, as the defendants' employees discovered when they found themselves locked out of the Scrap Yard on attempting to go to work on 14 th April 2009.
The defendants' case as to the effect of the Clause.
In his written skeleton argument, Mr David Phillips QC, who appears with Miss Tiffany Scott on behalf of the defendants, set out the defendants' case in this way:
The Defendants' case is that the effect of the January 1969
conveyance is to deprive the Claimants of the right to bring the
present case in nuisance. That case is based upon the following
analysis –
(1) The conveyance operates to restrict the passing of rights which would otherwise pass to the purchaser, which
would enable him to interfere with the free use of the
adjoining land.
(2) The conveyance does not as such operate to confer any
enforceable benefit or right on the adjoining owner or
occupier (although that may be a necessary incident of
proposition (1)); it operates to provide a defence to any
action brought by the purchaser attempting to enforce
those rights which are excluded from the conveyance.
(3) There is therefore no need for the adjoining occupier, in
order to mount a defence to an action brought by the purchaser based on those excluded rights, to show that it
has the benefit of any right conferred on the British
Railways Board by the conveyance. There is no right or
benefit as such conferred on the British Railways Board,
nor one which must somehow be shown to have attached
to the adjoining land or which “runs with the land”.
(4) The conveyance is directed towards allowing the “free
use” of the adjoining land free from interference by the
purchaser. It is not therefore concerned with proof of title
to the adjoining land by the “user”.
(5) The words “deriving title under” must take their meaning
from the context and are in this context apt to include not
only successors in title, lessees, mortgagees and assigns
but also licensees and those in lawful occupation of the
adjoining land.
(6) The Second Defendant is not in occupation under any
licence but as the agent or alter ego of SITA MR Ltd; and
the occupation of one is deemed to be the occupation of
the other.”
I need not read paragraph 14 and move to paragraph 15:
“15. The conveyance must be construed in accordance with the conventional principles governing the interpretation of written contracts. Those principles were summarised by Mr Edward Bartley Jones QC in Margerison v Bates [2008] EWHC 1211 (Ch) in the following terms…”
I do not think I need set those out.
“16. We make two simple points. First, the natural and ordinary
meaning of the words “There is not included in the
Conveyance…any… right which would restrict or interfere with
the free use by the Board…for any…purpose of any adjoining or
neighbouring land of the Board” is self-evident. When he
purchased the land Mr Thornhill acquired no right to restrict the
British Railways Board's activities on any of its adjoining or
neighbouring land. The sale was on the express basis that such
right was excluded.
Second, that natural and ordinary construction is supported and confirmed by the relevant facts surrounding the transaction so far as known to the parties. Station House and its grounds had
been a tied house standing in the middle of industrial and
railway premises. During the period that he was a tenant Mr
Thornhill could not have objected to any of the activities being
carried on by the British Railways Board. At the time of the...
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